Critical junctures in environmental policy:
The Exxon Valdez Oil Spill
Brooke Findley
On March 27, 1989, the Exxon Valdez oil tanker slammed into Bligh Reef in Alaska's
Prince William Sound, spilling almost eleven million gallons of crude oil that would
make its way from the sound to Kodiak Island and the Kenai Peninsula. In the
wake of the Exxon Valdez oil spill, a plethora of factors worked together to produce
a startling new result in oil spill legislation. Just eighteen months after
the 1989 spill, the Oil Pollution Act of 1990 was signed into law, alleviating a
successful stall by the lobbying oil industry lasting nearly fourteen years.[1]
The Exxon Valdez was nothing short of a serious environmental disaster. An
environmental disaster acts as a catalyst in the legislative realm, creating the
need for a "fast fix." But it is not the disaster alone that makes
the legislation possible; rather it is the effect that the disaster has on the many
players in the policy-making system. A common occurrence in environmental policy
is to deny that an environmental disaster is really a disaster. The President
of Union Oil Company was quoted as saying that the spill may have been "referred
to as a disaster, it was not a disaster to people; there was no one being killed."[2] However, environmental disasters can spur
news media, interest groups, lobbyists and the general public to influence legislators
to change or institute new environmental policy.
Literature Review
Many arguments have been posed by political scientists and media specialists concerning
what is necessary to create solid legislation that ends dormant argument and passes
seemingly dead bills, especially in the case of environmental disasters. The
two core arguments are "critical juncture" versus "necessary but not
sufficient." The critical juncture argument, championed by authors such
as Thomas Birkland, maintains that simply the tragic event itself is enough to change
the policy-making process drastically by taking a dormant bill and changing it into
law. Birkland has many dissenters such as Allison Anderson, John Keeble and
John Weins who argue that the critical juncture is necessary to spur the policy change,
but it is not sufficient on its own. Instead, they argue that it takes interest
groups and media to catapult the critical juncture into the social and political
spotlight. Keeble, who has worked closely with many interest groups after disasters,
says that they provide a humanistic feeling and emotion that cannot be conveyed by
general facts. He cites that general technological facts alone have never provided
enough evidence for legislative change. Change takes genuine constituent interest
and massive agreement.[3] Anderson asserts that
the critical juncture would be nothing more than a sad story unless it is portrayed
in a way that stirs up emotion in people and makes them want to do something to help
the situation by making positive changes in the system through changes in policy.
She maintains "news presents us with particular versions of reality, which are
necessarily selective."[4] Along with the
media's ability to provide selectivity comes its ability to shape opinions and spur
legislative change through the people.
John Weins asserts that it takes all levels of involvement after a focusing event
or critical juncture to change views of constituents and lawmakers alike. In
an article in Bioscience he notes, "the magnitude and emotional impact of the
Exxon Valdez spill or of any large disaster could lead to abandonment of scientific
and technical rigor. Many emotions are inflamed by the underlying politics,
such as big business versus the environment, and the saturation coverage of such
events by the news media."[5]
Former Environmental Legislation
The long-standing roadblock in oil spill legislation originated with the argument
over the preemptive features of federal vs. state law. Efforts to write a comprehensive
piece of oil spill legislation that would outline oil spill liability, response and
compensation began in 1975. However, it was held up in an attempt to combine
oil spill policy with a system for cleaning up toxic substances (later known as Superfund).
During this time, the United States General Accounting Office found that oil industry
officials found "40 cases of crude oil contamination occurring between 1982
to 1989."[6] Up until 1989, there were two
small, loosely written oil spill policies policing the waterways: The Ports and Waterways
Safety Act of 1972 and the Federal Water Pollution Control Act of 1973.[7]
A small clause was added onto the FWPCA (later to become the Clean Water Act) that
included placing liability on the spiller for restoration and cleanup, providing
it is not an act of God. The same idea carried through into the Oil Pollution
Act of 1990 (OPA), but after the major problems surrounding the Exxon spill cleanup,
OPA allowed for the federal government to begin to more aggressively institute the
cleanup effort and hold the spiller financially responsible.
OPA's cleanup clause remedied a very serious problem that arose during the Exxon
Valdez Spill. The Trans-Alaska Pipeline Authorization Act of 1973 (TAPAA)
made the pipeline owners liable for the costs of controlling and removing pollution
caused by pipeline operations. However, the financial stipulations of TAPAA
were dramatically low: $100 million from the fund and $14 million from the owners
of the vessel. This did not cover recovery costs, and the discrepancy stalled
cleanup until financial issues could be resolved.
Critical Junctures
Many scholars have competing theories on why the spill spurred the public and Congress
to action in such a way. Some say that the surprise factor associated with
an environmental disaster upsets our sense of confidence and raises fear in people.
Thomas Birkland cites that the spill is a "focusing event" or critical
juncture. He says that disasters impact people by "confounding social
expectations, and are not completely unpredictable; are often harmful, and they open
windows of opportunity for increasing our capacity to manage environmental problems;
they are so powerful because they are rare, sudden, harmful and because they directly
or indirectly affect many people."[8]
Birkland illustrates critical junctures and immediate effects with miniature case
studies surrounding the Exxon Valdez study. Superfund, once a part of the problem
holding up the passing of the oil spill bill, was made into its own law mainly to
address two other disastrous surprises: Love Canal and Times Beach. The oil
spill legislation remained fragmented and inconsistent until the next "surprise"
prioritized it again. In these situations, the policy-makers have no advantage
over the public, and may need to make a move very quickly to keep ratings with their
constituents high.
Interest Groups
A critical juncture is only the origin on the path to new legislation. Its
surprise factor gives an advantage to formerly politically disadvantaged groups that
gain a new opportunity to express their interests. More powerful groups have
less time to manage their response to the event than they do in the face of slower-onset
problems such as global warming or ozone depletion. In situations dealing with
such issues, there is time for the more powerful anti-environmental groups to gather
counter-productive information and use their predisposed power in the policy-making
realm. At the same time, interest groups, the underdogs of this fight, have
a small chance to get their story out to the general public due to their lack of
resources.
The Exxon Valdez Interest Groups
In the case of the Exxon Valdez spill, groups that have fought oil tanker traffic
development in Alaska from the beginning had the largest role in group activism after
the spill. Having fought for a long time against the oil companies and their
stronghold over the state of Alaska and the United States government, the groups
were armed with research and organization that they quickly mobilized after the spill.
This included a broad range of groups: consumer, fishing, labor and environmental
organizations that under different circumstances may not have come together.
Opposing oil business in the state of Alaska had always been difficult: since 1970,
the state of Alaska has had no personal income tax, deriving 85% of its revenues
from oil taxes.[9] Labor and environmental organizations
remained unpopular due to the financial freedom that oil provided the state of Alaska,
but consumer and fishing organizations have always been respected in Alaskan policy-making.
These fishermen made their case not as the underdogs with new-found power after the
critical juncture, but as respected speakers of the state of Alaska telling everyone
that oil and fisheries do not mix. Historically, fishing and environmental
groups did not find themselves on the same side of most issues. Birkland cites
that much of the allying was not triggered by group efforts, but rather by unadulterated
outrage.[10] This outrage pushed these groups
to mount very effective media campaigns that educated and rallied the general public
to demand compensation from the Exxon Corporation and to prevent further destruction
of this magnitude.
The Exxon Valdez interest group accomplishments
The environmental and fishing groups first looked into the TAPAA provisions to pay
damages because the spill did result from pipelined oil. However, the $100
million did not begin to cover cleanup and compensation. The next step included
a legal battle between native villages and fishing groups against the Exxon Corporation.
Exxon is currently appealing a civil judgment of $5 billion to be paid to fishermen
and residents of native villages adversely affected by the spill. Although
the current judgment is under appeal, the groups that sued Exxon made a point during
this legal battle, evident by the large amount of media attention that they received
as a small group taking on a multi-million-dollar corporation. Also, some of
the $900 million settlement that Exxon agreed to pay the government in a civil case
will be paid to certain industries and interest groups through a variety of funds.[11]
Interest groups may not have won the fight on their own, but their vigilance pushed
the government to go further in their own settlement. "Big Oil,"
a group that includes the main players in world oil trade, has long-since held an
important place in United States policy. For most issues concerning oil and
oil by-product pollution, there is little long-term planning concerning better policies
because there is no long-term payoff and many politicians do not deem it to be a
positive tool for re-election.[12] Immediately
after the spill, politicians were forced to make a choice about whether their loyalties
were with big energy or their constituents who supported the interest groups.
Suddenly the tables that support big energy had turned: now instant gratification
consisted of awarding the interest groups with their support.
The result was a comprehensive settlement that provided a large amount of financial
restitution for the incident. This won policy-makers phenomenal constituent
support, further encouraging them to pass more comprehensive spill legislation in
1990. The settlement included a criminal plea agreement in reference to the
gross mishandling of the incident and a $150 million fine, the largest fine ever
imposed for an environmental crime. Much of the choice of a large settlement
resulted from the fact that the captain of the Exxon Valdez tanker was under the
influence of alcohol when the tanker ran aground, and Exxon's poor response to clean
up immediately after the spill. As restitution for the fish, wildlife and lands
misuse, Exxon paid $100 million.[13]
News Media
Ross Anderson described an oil spill as "one of the most highly visible and
emotion-causing forms of ocean pollution."[14]
The media's role in this area of response to the Exxon Valdez spill is to shape the
minds of the public, in turn setting the stage for future public and private actions.
Media specialists like Allison Anderson say that, contrary to Birkland's philosophies,
it is not the actual event that sets the stage for legislative change, rather it
is the media that allows for the important effects to reach and make necessary impressions
on people. In the case of the Exxon Valdez spill she says, "Television
images of dead otters and oily birds became archetypes of corporate incompetence,
and associated Exxon blackened beaches and drunken sea captains."[15]
She claims that once such a damaging association had been made, it is essentially
impossible to change. Media coverage stirred up the timeless debate of oil
vs. environment, further placing a negative view on the spill, and hopes for the
future. Oil companies found it difficult to stand up to the media campaign
pitting the beautiful, expansive Alaska wilderness against the sheer size of the
spill. Both environmental and fishing groups used symbols to show the public
powerful images related to the spill such as oiled sea otters, dead birds, idle fishing
boats and futile cleanup activities. With the media's help, this message triumphed
over the oil companies' images of an accidental oversight that would quickly be cleaned
up and forgotten about. For the first time in the history of Alaskan oil, the
financial support that the oil commerce provided the state did not protect it from
facing the reality of the negativity that it had caused.
Oil Pollution Act of 1990
Oil pollution legislation had been stalled in Congress for fifteen years due to the
successful lobbying efforts of the oil industry. After the Exxon Valdez spill,
the law changed the institutionalized processes from something that did not fulfill
legitimate expectations to legitimate institutionalized processes that did.
The new law reflected a strong national commitment to regulating the industry in
order to protect the natural environment.[16]
Before formulating the law, Congress requested that the United States General Accounting
Office report on the United States government's handling of the spill in the areas
of cost, preparedness and response. The GAO found that the spill cost the federal
government $125.2 million that would not be reimbursed. It also found that
the inadequate response was due to equipment and personnel shortages, inadequate
communications and ineffective organizational structure.[17]
With this in mind, Congress formulated the Oil Pollution Act of 1990. A surprising
component of passing the more stringent oil spill legislation was the House accepting
the Senate's protection of the state liability systems. It is known that states'
liability systems do not conform to the international code, but in an effort to end
the deadlock, the House allowed for the discrepancy.
OPA å90
OPA contains harsher penalties and increased liability for the spillers, gives more
federal resources to deal with spills and places the responsibility of response to
the spills on the executive branch of the United States government. OPA spurred
oil companies to work on improving their own techniques for dealing with spills including
improving ship construction, loading techniques and employee training.
Implementation of OPA, as general counsel of the Environmental Protection Agency
Charles Openchowski announced, "will take years to fully implement."
Many government agencies, including the Environmental Protection Agency, Coast Guard
and National Oceanic and Atmospheric Association, are responsible for implementing
"over 50 new administrative duties and responsibilities."[18]
Many of these new duties and responsibilities fall into the bureaucratic trap of
there just not being enough manpower to introduce and implement these changes in
a timely manner.
OPA also provided positive environmental spillover effects. Some political
scientists, such as John Kingdon, maintain that one "policy stream" can
influence other such streams, this leading to a ripple effect in many areas.
His analogy explains one possible reason for the shift and subsequent drop-off in
the interests to explore the Arctic National Wildlife Refuge in Alaska (ANWR) for
oil drilling. The Exxon Valdez spill led to both OPA and stalled oil exploration,
at least temporarily, in ANWR.[19] Exxon and other
oil companies took a hit in terms of their credibility with the general public, which
carried through to elected officials. When the issue of drilling appeared on
the floor during the next legislative session, it received the same treatment as
the future Oil Pollution Act had for so many years. It would take a Republican
president with oil interests to bring the issue to the floor in a positive light.
At this time, it is impossible to be sure if the same ripple effects that stopped
the possibility of drilling in ANWR will be remembered.
Since OPA was passed only eleven years ago, in-depth policy evaluation has not been
conducted. However, the EPA reported in 1997 that "spills over 100,000
gallons decreased by 43 percent, with vessels showing the largest decrease of 66
percent."[20] This would indicate a correlation
between better operational techniques and the pressure of an oil company's increased
financial burden in the event of a spill.
Conclusion
Although critical junctures play an important role in spurring policy change in a
disastrous situation, they are only the beginning in an important set of events that
must occur in order to change policy. In our government's complex policymaking
system, it is impossible for a single event to tip the scales in favor of passing
any policy, especially one that has been argued against for 15 years. The case
study of the Exxon Valdez Oil Spill and its influence on and possible leading to
the Oil Pollution Act of 1990 has shown that the critical juncture is a necessary,
but insufficient, component to be used to spur policy change. Although the
critical juncture begins the process, it takes a collaboration of interest groups,
the media and the general public who use their constituent power to demand better
policy. Environmental disasters seldom have the advantage of the quick-fix
policy. Most environmental policies take years to see results and are not deemed
necessary in good re-election strategy by policy-makers, due to the amount of time
it takes for their constituents to see the results of their work. While critical
junctures do have a surprise factor, it is the constituent opinion and outrage that
encourage policy-makers to embark with new legislation and accomplish it quickly.
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[1] Willson, Stephanie Joan, "Disaster, Law and
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[2] J. Potter, Disaster by Oil (New York: Macmillan,
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[3] Keeble, John
[4] Anderson, Allison, pp.107.
[5] J. Wiens, "Oil, Seabirds, and Science,"
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[7] Davis, Nancy. "The Exxon Valdez
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[9] Keeble, John. "Out of the Channel."
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[10] Birkland, Tomas A.(1998). In the wake of
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[11] Exxon's future of restoration. Retrieved
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[12] Shulman, Stuart. Env-156 lecture. 9
Sept, 2001.
[13] The Settlement. Retrieved 28 Oct,
2001, from http://www.oilspill.state.ak.us/setlment/setlment.htm
[14] Anderson, Ross (1999). 10 years later, debate
still rage over effect of Exxon Valdez oil spill [Electronic version]. Seattle
Times. Retireved 28 Oct, 2001. from http://www.seattletimes.com.
[15] D. Slater, "Dress Rehearsal for Disaster,"
Sierra, March 1994, 53-57.
[16] Willson, Stephanie Joan. "Disaster,
law and power: The Oil Pollution Act of 1990." University of Delaware
Press. Vol. 60-03A. 1998.
[17] Adequacy of Preparedness and response to Exxon
Valdez Oil Spill. Retrieved 26 October 2001. from http://www.gao.gov/docdblite/summary.php?recflag=&accno=139289&rptno=T-RCED-89-214
[18] C. Openchowski, "Federal Implementation of
the Oil Pollution Act of 1990," Environmental Law Reporter 21 (1991): 10,605-17.
[19] M. Satchell and B. Carpenter, "A Disaster
That Wasn't," U.S. News and World Report, 18 September 1989, 61-69.
[20] U.S. Environmental Protection Agency, Office of
Solid Waste and Emergency Response, "ERNS and OPA 90: Emergency Response Notification
System (ERNS) Fact Sheet," Publication 9360.0-38FS (April 1997).